Constitutional Rights Matters Even In Religion

If you look at the history of some of the BJP leaders, including Prime Minister Narendra Modi, you will find it very difficult to ignore their Hindu nationalist ideology and how it plays out in their exercise of power. They have made it very clear that hindutva is the way forward. Not totally bad but it can be if it starts to ignore constitutional guarantees of religious freedoms.

The NDA government may not be the best government to tackle religious extremism and its clash with fundamental rights of citizens but it deserves credit for putting constitutional rights of individuals before religious laws.

Last year, at the Maha Parivartan Rally in Mahoba, Uttar Pradesh, Prime Minister Narendra Modi said, “In democracy, there should be discussion. The government has put forward its position. Those who want to digress from triple talaq are instigating people…in the country, lives of Muslim women cannot be allowed to be ruined by triple talaq.”

The Prime Minister took a careful but bold step when he injected his views on the controversial “triple talaq” debate and even urged “TV news channels to not turn triple talaq into an issue of Hindu versus Muslim or BJP versus other parties.”

According to news reports, he also said “that in its submission to the Supreme Court, the central government had clearly stated that there should not be any atrocity on women and there should be no discrimination on the basis of religion.”

Taking at snipe at opposition parties, he said, “I am surprised that some political parties of the country in their lust for vote bank are hell-bent upon committing injustice to women in the 21st century. What kind of justice is this? Politics and elections have their own place but getting Muslim women their rights as per the Constitution is the responsibility of the government and the people of the country.”

The Prime Minister, with all his faults, could not be clearer on how the laws should apply and what position governments should take when religion and government collide. He is correct to point out the issue of justice or lack thereof which is central to this debate.

What is “triple talaq” anyway? In short, it is a strand of Islamic law where a Muslim husband can say the Arabic word “talaq” three times and divorce his wife, sometimes arbitrarily and instantaneously. Because some Muslim leaders say it is an Islamic religious law, they therefore claim protection of under the Indian constitution.

In general, the Indian constitution guarantees the manner in which religion operates within the confines of its influence (Article 26: Freedom to manage religious affairs…every religious denomination or any section thereof shall have the right…to manage its own affairs in matters of religion.) However, if religious tenets become agents of injustice, often, they are overruled by the legislature or the courts.

Muslim leaders in India say that the concept and practice of talaq is misused by some Muslim men and that the talaq itself is lawful and good when used properly. They are not in favour of it being declared unlawful because they claim that their religious divorce law is protected by the Constitution and should remain.

As for the alleged misuse of the talaq, Mohammad Jafar, a life member of the All India Muslim Personal Law Board, says the solution is to educate Muslim men, “as they have done something not permissible in Islam” by pronouncing instantaneous divorce. The government’s solution is Uniform Civil Code and the Muslim women’s network Bharatiya Muslim Mahila Andolan (BMMA) wants it declared unconstitutional.

Are religious laws immune from the scrutiny of the government and the court? Apparently not. The practice of triple talaq, according to many Muslims, is not a clearly defined Islamic law. Some Muslim countries actually prohibit it precisely because of the fact that it can and has been misused by Muslim men under the pretext that Islam has given them permission to do so.

According to Prem Anand Mishra, a research scholar at the Centre for West Asian Studies, School of International Studies, JNU, New Delhi, “[m]ore than 20 Islamic countries including Egypt, Sudan, Jordan, Iran, Syria, Lebanon, Morocco, Iraq, and even Pakistan and Bangladesh, are updating Sharia laws relating to marriage and have imposed a court injunction against a husband pronouncing talaq.”

Are Muslim women in India denied their constitutional fundamental rights? The Prime Minister and his government believe so. The Central government even told the Supreme Court that this Islamic law renders Muslim women “unequal and vulnerable.” Given the disadvantage they have faced and continue to face under the practice of this Islamic divorce law, the fundamental rights of Muslim women for equality under the law (i.e., government law) stands violated and under constant judgement.

The Prime Minister is right to denounce parts of a religious law which, when implemented, cause great harm to women and call for its abolition. The primacy of the right of the individual is a natural right that cannot be allowed to suffer under laws enacted by the government or even religion. At least that is the belief of freedom-loving persons. In this case, the Prime Minister is on the side of freedom-lovers.

Why is the Prime Minister’s stand on constitutional rights important and relevant for Mizoram, a state that has nothing to do with this Islamic law? Because there is a similar struggle between religious authorities and individuals on the issue of whether religious laws can trump constitutional fundamental rights of women. And the concerned government authorities act as mere spectators.

THE CASE OF BAPTIST CHURCH OF MIZORAM

In the case of Mizoram, the Baptist Church of Mizoram is the religious body in question and the women are pastors’ wives.

Here’s a snapshot of the story.

In 2008, the Baptist Church of Mizoram’s highest council – the Assembly – deliberated on the issue of strengthening pastoral ministry. It was generally agreed that pastors minister to their congregation better when they are accompanied by their wives in their pastorates. A three-point agenda was clubbed into one where the means to achieve the desired goal of strengthening pastoral ministry was passed and it has since become a problem that has directly or indirectly caused at least six couples’ separation or divorce.

While the agenda raised a bit of a concern, none at the Assembly, including the top church officials, realised that they had just passed a resolution violating the BCM’s constitution and the constitution of India. The church Assembly resolved to ban all pastors’ wives from engaging in full time work after 2015. The Baptist church’s own Constitution declares that the defence of fundamental human rights is one of its prime objectives and the constitution of India under Article 19(1)(g) guarantees all citizens the right “to practise any profession, or to carry on any occupation, trade or business.” Besides, the terms of service of pastors’ wives who are government employees are governed by The Central Civil Services (Conduct) Rules, 1964 and not the church.

The matter is in the hands of the Mizoram State Commission for Women under the leadership of Chairperson Vanlalawmpuii Chawngthu, MLA. The Baptist church was asked to submit a written explanation of its decision and implementation which it has done. However, the church document has not been made public.

The general belief among Baptist church leaders is that the Church is immune from the constraints of the laws of the government and that it obeys a higher divine law. Hence, any church Assembly resolution has a divine sanction and may not be challenged even if it violates the constitution i.e., the law of the land.

If the state’s Women’s Commission is unable to convey to the Baptist church leaders that the fundamental rights of citizens guaranteed in the constitution cannot be violated by the church, a fresh look at the case by the National Commission for Women may be warranted.

While the BJP-led government is not exactly known for having great sympathy towards Christians and other minorities, it is on the right side of the law when it comes to the defense of Muslim women’s fundamental rights.

The Hindu-nationalist Prime Minister Narendra Modi is right when he said, “Muslim women cannot be allowed to be ruined by triple talaq.” If the matter about the plight of Baptist pastor’s wives was brought to the attention of the National Commission for Women or for that matter the Prime Minister, the response would most likely be – “Baptist women cannot be allowed to be ruined by unconstitutional church resolutions.”

They are also most likely to say that getting Baptist pastors’ wives “their rights as per the Constitution is the responsibility of the government and the people of the country.”

The Mizoram State Commission for Women has a difficult but very important job to do. The Baptist church leaders will continue to assert the divine right of the church but the law is not on their side. Just as Islamic law cannot be used to perpetrate injustice, the church cannot use its Assembly or committees to violate the constitutional rights of women and subject them to an almost irreparable financial, emotional, physical and spiritual damage.

If and when the matter is properly addressed, the Baptist leaders will have no biblical verse or Baptist tradition to support the ban of pastors’ wives to work full time.

Constitutional rights matter for Muslim women. They also matter for Christian women in the Baptist Church of Mizoram.